Wael Ata Aboughali, MD, DAB CR6476 (2024)

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division

Wael Ata Aboughali, MD 
(OI File No. 6-13-40184-9), 
Petitioner,

v.

The Inspector General.

Docket No. C-24-162
Decision No. CR6476

DECISION

I affirm the determination of the Inspector General (IG) of the United States Department of Health and Human Services to exclude Petitioner from participation in all federal health care programs for seven years. 

I. Background

Petitioner is a physician.  In an October 31, 2023 notice, the IG excluded Petitioner from participating in all federal health care programs under section 1128(a)(1) of the Social Security Act (42 U.S.C. § 1320a-7(a)(1)) for a period of seven years due to Petitioner’s conviction in the United States District Court for the Southern District of Texas (District Court) of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  The notice stated that the exclusion would be effective 20 days from the date of the notice.  IG Ex. 1. 

The notice provided the following as the basis for extending the length of exclusion from the statutory minimum of five years to seven years: 

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[Petitioner’s] license was suspended by the Texas Medical Board.  That suspension was stayed, and [Petitioner’s] license was placed on probation.  The Center[s] for Medicare and Medicaid Services placed [Petitioner] in the Preclusion List revoking [Petitioner’s] Medicare Privileges. 

IG Ex. 1 at 1. 

On December 29, 2023, Petitioner filed a request for hearing to dispute the seven-year length of exclusion.  On January 2, 2024, the Civil Remedies Division (CRD) acknowledged Petitioner’s hearing request, informed the parties that I would hold a prehearing conference on February 1, 2024, and issued my Standing Order.  

On February 1, 2024, I held a telephonic prehearing conference, the substance of which is summarized in my February 1, 2024 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions.  At the conference, Petitioner’s counsel conceded that Petitioner was convicted of a crime for which the IG was authorized to exclude Petitioner from participation in all federal health care programs for a minimum of five years.  Based on the concession, I stated that the only issue in this case was whether the seven-year length of exclusion is unreasonable.  I further stated that the IG had the burden of proving the existence of the alleged aggravating factor justifying an increased length of exclusion and that Petitioner had the burden of proving the existence of any alleged mitigating factors to reduce the length of exclusion. 

On February 29, 2024, the IG filed a prehearing brief (IG Br.) and seven proposed exhibits.  On April 11, 2024, Petitioner filed a brief (P. Br.) and five proposed exhibits.  On April 23, 2024, the IG filed a reply brief (IG Reply). 

II. Admission of Evidence

I admit all of the proposed exhibits because neither party objected to any of them.  Standing Order ¶ 13; see 42 C.F.R. § 1005.8(c).  

III. Decision on the Written Record

Neither party seeks to provide witness testimony, and both indicate that an in-person hearing is unnecessary.  IG Br. at 6; P. Br. at 9.  Therefore, I issue this decision based on the written record.  Standing Order ¶ 16; see also 42 C.F.R. § 1005.6(b)(5). 

IV. Issue

Whether the seven-year length of the exclusion imposed on Petitioner is unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii). 

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V. Jurisdiction

I have jurisdiction to adjudicate this case.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. § 1005.2. 

VI. Findings of Fact

  1. Petitioner is a physician who was licensed to practice medicine in the state of Texas on August 26, 2005. IG Ex. 6 at 2. 
  2. Petitioner primarily engages in the practice of family medicine and was board certified by the American Board of Family Medicine on August 9, 2008. IG Ex. 6 at 2; P. Ex. 3 at 1. 
  3. On June 28, 2018, a grand jury empaneled by the District Court indicted Petitioner on four counts of criminal conduct. IG Ex. 2. 
    1. Generally, the Indictment alleged that Petitioner signed plans of care/certifications for home health services for Medicare beneficiaries who were not under Petitioner’s care and who did not medically need those services. IG Ex. 2 at 5.  These actions assisted others at home health agencies to bill the Medicare program for unnecessary services that were not provided to Medicare beneficiaries.  IG Ex. 2 at 6. 
    2. Count 2 of the Indictment alleged that Petitioner violated 18 U.S.C. § 1035 by knowingly and willfully making false, fictious, and fraudulent statements and representations “in connection with the delivery of and payment for health care benefits, items, and services” involving the Medicare program. This count specified that Petitioner provided a false certification for home health agency services for a Medicare beneficiary resulting in an improper Medicare payment. IG Ex. 2 at 7.
  4. Petitioner entered into a Plea Agreement with the United States Attorney’s Office (USAO) in which Petitioner agreed to plead guilty to Count 2 in the Indictment. IG Ex. 3 at 1.  The Plea Agreement included the following: 
    1. An admission that Petitioner “falsely stated on Plan of Care Forms for patient R.H. stating that R.H. was under his care and in need of home health, when in fact R.H. was not under his care and he did not qualify for home health services. [Petitioner] caused the payment of approximately $2,148.33 in fraudulent claims for Medicare Part A home health services that were not medically necessary, not provided, or both on behalf of Medicare beneficiaries for whom [Petitioner] was listed as the purported attending physician for home-health services.”  IG Ex. 3 at 9. 

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  1.  
    1. An agreement to cooperate with the USAO by providing information and testimony concerning criminal activity known to Petitioner. IG Ex. 3 at 2-3. 
    2. An acknowledgment of the USAO’s discretion to file a motion under § 5K1.1 of the United States Sentencing Guidelines for a downward departure in Petitioner’s sentence based on cooperation. IG Ex. 3 at 2-3.
  2. On December 27, 2022, the District Court entered a Judgment in a Criminal Case, which indicated the following:
    1. Petitioner pleaded guilty to Count 2 of the Indictment on July 7, 2022. IG Ex. 4 at 1.
    2. The District Court adjudicated Petitioner guilty of violating 18 U.S.C. § 1035 (False statements relating to health care matters). IG Ex. 4 at 1.
    3. The District Court sentenced Petitioner to two years of probation. IG Ex. 4 at 2.
    4. The District Court ordered Petitioner to pay restitution to the Medicare program in the amount of $49,085.78. IG Ex. 4 at 4.
  3. On January 17, 2023, the Texas Medical Board (Medical Board) issued an order suspending (suspension order) Petitioner’s Texas medical license until further order from the Medical Board and prohibiting Petitioner from practicing in Texas until authorized by the Medical Board. IG Ex. 5 at 2; IG Ex. 6 at 1.  
    1. Before issuing the suspension order, the Medical Board held a hearing on January 10, 2023, at which Petitioner appeared. IG Ex. 5 at 1.
    2. The Medical Board based the suspension on Petitioner’s conviction in the District Court of a felony. See IG Ex. 5 at 1-2.
  4. On March 3, 2023, the Medical Board issued an Agreed Order of Probated Suspension. IG Ex. 6.  The Agreed Order contained the following provisions: 
    1. The following mitigating factors were considered when determining an appropriate sanction for Petitioner (IG Ex. 6 at 2):
      1. Petitioner has rehabilitative potential;
      2. Petitioner made full restitution; and

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  1.  
    1.  
      1. Petitioner cooperated in the investigation of allegations related to his federal criminal charges and cooperated in his case before the Medical Board.
    2. Petitioner’s medical license was suspended but the suspension was immediately stayed, and Petitioner was placed on probation. IG Ex. 6 at 4.
  2. On April 26, 2023, the Centers for Medicare & Medicaid Services (CMS), through a Medicare contractor, revoked Petitioner’s Medicare billing privileges effective July 7, 2022. IG Ex. 7.  
    1. The bases for the revocation were: 1) Petitioner’s felony conviction in the District Court for false statements related to health care matters and 2) Petitioner’s failure to inform CMS of the conviction within 30 calendar days. IG Ex. 7 at 1.
    2. Petitioner was barred from reenrollment in the Medicare program until July 8, 2032. IG Ex. 7 at 3.
  3. In the April 26, 2023 notice revoking Petitioner’s Medicare billing privileges, CMS also stated that it was adding Petitioner’s name to the CMS Preclusion List. IG Ex. 7 at 1-2. 
  4. On May 17, 2023, the American Board of Family Medicine withdrew Petitioner’s board certification in family medicine effective July 7, 2022. Ex. 3 at 1.
  5. On December 20, 2023, the District Court granted Petitioner’s request for early termination of probation. Ex. 1.
  6. On December 21, 2023, the Medical Board terminated Petitioner’s probation effective December 20, 2023. Ex. 2.
  7. On December 26, 2023, the American Board of Family Medicine reinstated Petitioner’s family medicine board certification effective December 20, 2023. Ex. 3 at 1. 

VII.     Conclusions of Law and Analysis

The Secretary of Health and Human Services (Secretary) must exclude an individual from participation in all federally funded health care programs when that individual “has been convicted of a criminal offense related to the delivery of an item or service under subchapter XVIII [of the Social Security Act] or under any State health care program.” 

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42 U.S.C. § 1320a-7(a)(1).  The Secretary interpreted this statute to mean that an individual must be excluded when the individual “[h]as been convicted of a criminal offense related to the delivery of an item or service under Medicare or a State health care program, including the performance of management or administrative services relating to the delivery of items or services under any such program.”  42 C.F.R. § 1001.101(a).  Therefore, for the purposes of this case, the two essential elements to support a mandatory exclusion are:  (1) the excluded individual must have been convicted of a criminal offense; and (2) the offense must be related to the delivery of a health care item or service under the Medicare or Medicaid programs. 

If an individual has been convicted of a crime that requires mandatory exclusion, then the Secretary must exclude the individual for at least five years.  42 U.S.C. § 1320a‑7(c)(3)(B).  However, the Secretary established, by regulation, a list of aggravating and mitigating factors that are to be considered in each case to determine whether the length of a mandatory exclusion should exceed five years.  See 42 C.F.R. § 1001.102(b)-(c). 

The regulations state that the preponderance of the evidence standard of proof is employed in exclusion cases.  42 C.F.R. §§ 1001.2007(c), 1005.15(d).  The regulations provide administrative law judges with the discretion to allocate the burden of proof in most exclusion cases.  42 C.F.R. § 1005.15(c).  I gave notice at the beginning of these proceedings that the IG had the burden of proving the existence of the alleged aggravating factor and that Petitioner had the burden of proving all mitigating factors.  Standing Order ¶ 7; February 1, 2024 Order Following Prehearing Conference at 1-2.  

When reviewing the length of exclusion, an administrative law judge may only reduce the length of exclusion when it is “unreasonable.”  42 C.F.R. § 1001.2007(a)(1)(ii). 

1. Petitioner is subject to a mandatory exclusion for at least five years under 42 U.S.C. § 1320a-7(a)(1).

Petitioner concedes having been convicted of a criminal offense that mandates Petitioner’s exclusion from participation in federal health care programs for a minimum of five years under 42 U.S.C. § 1320a-7(a)(1).  P. Br. at 1-2.  A review of the record in this case indicates that there is no doubt that Petitioner is subject to a mandatory five-year exclusion. 

2. The IG proved the existence of an aggravating factor under 42 C.F.R. § 1001.102(b)(9).

The regulations provide that the following is an aggravating factor that may be considered as a basis for lengthening the period of exclusion: 

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The individual or entity has been the subject of any other adverse action by any Federal, State or local government agency or board if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion. 

42 C.F.R. § 1001.102(b)(9). 

The IG argues that this aggravating factor is shown by “two separate adverse actions” that are both based on the same set of circumstances as the basis for the imposition of the exclusion.  IG Br. at 2-3.  The IG asserts that the Medical Board issued both an Order of Suspension by Operation of Law on January 17, 2023, and the March 3, 2023 Agreed Order of Probated Suspension, both of which were directly based on Petitioner’s criminal conviction.  IG Br. at 3.  Further, the IG states that the second adverse action is CMS’s revocation of Petitioner’s Medicare billing privileges, which is based both directly on Petitioner’s criminal conviction and on Petitioner’s failure to report that conviction to CMS.  IG Br. at 3. 

Petitioner concedes that the Medical Board took an adverse action against Petitioner.  P. Br. at 2-3.  However, Petitioner appears to argue, as discussed below, that the adverse action is modest and should not result in an extension of the length of exclusion.  P. Br. at 3. 

However, Petitioner disputes that CMS’s revocation of Medicare billing privileges and the addition of Petitioner’s name to the CMS Preclusion List ought to be considered as adverse actions in this matter.  P. Br. at 4.  Petitioner asserts that the IG’s exclusion notice was the first notice that Petitioner received of CMS’s determination to revoke and add Petitioner’s name to the Preclusion List.  P. Br. at 4-5.  Therefore, Petitioner learned of the revocation/preclusion actions after the 65-day appeal period following October 31, 2023.  P. Br. at 5.  Further, Petitioner did not see CMS’s notice of the revocation/preclusion until the IG submitted a copy in this proceeding as IG Exhibit 7.  P. Br. at 5.  Petitioner indicates that the address on CMS’s notice is incorrect, which is why Petitioner did not receive the notice.  P. Br. at 5.  Based on this situation, Petitioner argues: 

Because Petitioner was not properly notified and not given the opportunity to appeal CMS’ placement of Petitioner on the Preclusion List in violation of his Due Process rights, the OIG should not consider Petitioner’s placement on the List as an aggravating factor.  

P. Br. at 6.

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The record is clear in this case that Petitioner was subject to two suspension orders as well as an order placing Petitioner on probation by the Medical Board.  Further, those orders expressly make findings as to Petitioner’s criminal conviction and indicate that the conviction is the basis for the suspensions and the probation.  IG Ex. 5; IG Ex. 6.  Therefore, the IG proved that there is a basis for extending the length of the five-year mandatory exclusion under 42 C.F.R. § 1001.102(b)(9). 

In addition, the IG also proved that there was a basis for extending the length of exclusion because CMS took adverse actions against Petitioner when it revoked Petitioner’s Medicare billing privileges and added Petitioner to the Preclusion List.  IG Ex. 7.  CMS articulated that one of the bases for its actions was directly related to Petitioner’s felony conviction (42 C.F.R. § 424.535(a)(3)) and the other was indirectly related because Petitioner failed to inform CMS of the conviction within 30 days of pleading guilty to a felony on July 7, 2022 (42 C.F.R. § 424.535(a)(9)).  There can be no doubt that both the revocation and preclusion are adverse actions.  See 42 C.F.R. §§ 422.222(a)(1)(i) (Medicare Advantage Organizations must not make payment to individuals on the Preclusion List); 423.120(c)(6) (Medicare Part D sponsors must reject pharmacy claims if the prescribing individual is on the Preclusion List); 424.555(b) (“No payment may be made for otherwise Medicare covered items or services furnished to a Medicare beneficiary by a provider or supplier if the billing privileges of the provider or supplier are . . . revoked . .  .”). 

Petitioner urges me to ignore CMS’s actions because Petitioner allegedly never received notice of CMS’s actions.  Petitioner did not submit a declaration concerning this issue or other evidence concerning the lack of receipt.1  However, even if Petitioner had furnished such evidence, I would still need to conclude that IG Exhibit 7 shows an adverse action that qualifies as an aggravating factor.  CMS’s actions are presently binding.  42 C.F.R. § 498.20(b)(1).  I have no authority to ignore a binding determination of CMS. 

3. Petitioner failed to prove that there are any mitigating factors present in this case.

If there are aggravating factors that justify increasing the length of exclusion to exceed five years, then the length of exclusion can be reduced if certain mitigating factors are present in a case.  42 C.F.R. § 1001.102(c).  Petitioner asserts that the following mitigating factor is present in this case: 

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The record in the criminal proceedings, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional or physical condition before or during the commission of the offense that reduced the individual’s culpability.  

42 C.F.R. § 1001.102(c)(2). 

According to briefing, Petitioner suffered from misdiagnosed schizoaffective disorder at the time of the criminal conduct.  Petitioner states that the misdiagnosis meant that the medications prescribed for Petitioner were not appropriate to treat Petitioner’s actual condition.  P. Br. at 6-7.  Petitioner cites a report (P. Ex. 5) from a psychiatrist who blames the misdiagnosis and improper treatment for Petitioner’s inability to realize that Petitioner’s former employer was using Petitioner’s signature in the scheme to order unnecessary services for Medicare beneficiaries.  P. Br. at 7.  Petitioner argues: 

As part of his plea agreement, Petitioner bound himself to cooperate with the United States Attorney’s Office (USAO).  His agreement to cooperate resulted in a plea reduction in the sentencing guidelines which were then further reduced by the Honorable Keith Ellison of the Southern District of Texas at his discretion.  Ultimately, Petitioner was sentenced, on December 16, 2022, by Judge Ellison to two (2) years’ probation.  No other restrictions were placed on Petitioner.  The probation officer’s opinion and recommendation for a purely probationary sentence resulted in his suggestion to Judge Ellison that “the Court may wish to consider the defendant’s [Petitioner’s] improperly treated mental health condition which existed at the time of the offense.”  

Petitioner’s probation officer, as well as Judge Ellison, took Petitioner’s mental and emotional health factors into consideration in determining sentencing and these factors are highly relevant and should be considered a mitigating factor as a basis for reducing the period of exclusion.

P. Br. at 8-92

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The IG argues in reply that Petitioner has failed to prove that the District Court determined that Petitioner had a mental, emotional, or physical condition before or during the commission of the offense and that such condition reduced Petitioner’s individual culpability.  IG Reply at 3-4. 

The IG is correct.  The record is devoid of any evidence showing that the District Court made such findings.  While Petitioner claims, in briefing, that the probation officer recommended that the District Court consider Petitioner’s mental health condition and that the District Court did consider it, Petitioner cites no evidence to support those claims. 

For 42 C.F.R. § 1001.102(c)(2), the relevant inquiry is whether Petitioner has proven that the District Court determined that Petitioner’s condition reduced Petitioner’s criminal culpability.  Patel v. Shalala, 17 F. Supp. 2d 662, 667 (W.D. Ky. 1998) (“Plaintiff has not provided any citation to the record in the criminal proceeding where the court made any finding that plaintiff was less culpable for his crimes due to a dependence on alcohol or drugs.”).  As mentioned above, I advised Petitioner in both my Standing Order and at the Prehearing Conference that Petitioner had the burden of proving the existence of any asserted mitigating factors.  Petitioner has not met that burden; therefore, I conclude that there is no mitigating factor under 42 C.F.R. § 1001.102(c)(2) in this case. 

4. The seven-year length of Petitioner’s exclusion is not unreasonable based on the aggravating factor in this case.

When considering the length of exclusion, “[t]he evaluation does not rest on the specific number of aggravating or mitigating factors or any rigid formula for weighing those factors, but rather on a case-specific determination of the weight to be accorded each factor based on a qualitative assessment of the circumstances surrounding the factors in that case.”  Farzana Begum, M.D., DAB No. 2726 at 2 (2016).  Further, the general purpose of an exclusion under 42 U.S.C. § 1320a-7 is “to protect federal health care programs and the programs’ beneficiaries and recipients from untrustworthy providers.”  Susan Malady, R.N., DAB No. 1816 at 9 (2002).  Ultimately, I must decide whether the seven-year exclusion is unreasonable (i.e., is it within a reasonable range for the length of exclusion based on the relevant factors).  42 C.F.R. § 1001.2007(a)(1)(ii); 57 Fed. Reg. 3298, 3321 (Jan. 29, 1992). 

The aggravating factor in this case, based on the Medical Board’s actions, warrants an increase in the length of the exclusion.  Petitioner argues that the Medical Board’s suspension was immediately stayed and only probation was imposed (P. Br. at 2-3).  However, Petitioner is incorrect.  The Medical Board suspended Petitioner from practicing medicine on January 17, 2023, following a hearing, and Petitioner was suspended until March 3, 2023.  IG Exs. 5-6.  Therefore, Petitioner served an actual suspension of a month and a half.  Further, Petitioner was not simply placed on probation, the Medical Board first reaffirmed that Petitioner was suspended before staying the

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suspension and ordering probation.  IG Ex. 6 at 4.  While, as Petitioner argues, the Medical Board terminated the probation in less than a year (P. Br. at 3; P. Ex. 2), this does not detract from the fact that Petitioner’s conviction for filing false certifications for unnecessary home health services warranted both an actual suspension and probation by the Medical Board that lasted approximately 11 months.  Therefore, I consider seven years (i.e., and increase of two years above the five-year minimum) to be within the reasonable range for the length of the exclusion based on the Medical Board’s actions.  

In addition, CMS’s revocation/preclusion action supports the length of exclusion.  CMS’s action is particularly relevant because Petitioner’s criminal offense harmed the Medicare program, a program that CMS administers.  CMS imposed the maximum re-enrollment bar of ten years on Petitioner, which is significant because the length of the bar depends “on the severity of the basis for the revocation.”  IG Ex. 7 at 3; 42 C.F.R. § 424.535(c).  CMS obviously believed Petitioner’s criminal conduct to be very severe in relation to the Medicare program.  Further, Petitioner’s failure to inform CMS of the criminal conviction, especially when it involved the Medicare program, shows additional concerns over Petitioner’s conduct.  IG Ex. 7 at 1; 42 C.F.R. §§ 424.516(d); 424.535(a)(9). 

The Medicare program is an extraordinarily important program that ensures health care for millions of aged and disabled persons in this country.  Both the Medical Board and CMS took adverse actions against Petitioner based on conduct that harmed that program.  I cannot find that an additional two years of exclusion is unreasonable to ensure that federal health care programs are protected. 

VIII.   Conclusion

I affirm the IG’s determination to exclude Petitioner for seven years from participating in all federal health care programs. 

Endnotes

1  CMS’s April 26, 2023 revocation/preclusion notice incorrectly states that Petitioner has 65 days from the date on the notice to file a request for reconsideration.  IG Ex. 7 at 2.  Petitioner has 60 days from the date of receipt of CMS’s notice to file a request for reconsideration, and the regulations presume, unless there is a showing otherwise, that the notice was received within five days of mailing.  Further, an extension to file may be granted if there is good cause for a late filing.  42 C.F.R. § 498.22(b)(3), (d). 

2  Although Petitioner references cooperation with the USAO and a reduction in sentence due to that cooperation, Petitioner neither expressly alleged the existence of a mitigating factor under 42 C.F.R. § 1001.102(c)(3) nor submitted evidence to prove that Petitioner’s cooperation met the requirements to be considered a mitigating factor. 

/s/

Scott Anderson Administrative Law Judge